Law, order, and the rights of criminal defendants 135that the exclusionary rule remains in effect, but in the last several decades the courts
have eased the conditions in which prosecutors can use evidence obtained under
questionable circumstances.Drug Testing Another area of Fourth Amendment law concerns drug testing. The
clause granting people the right “to be secure in their persons” certainly seems to cover
drug testing. However, the courts have long recognized the right of private companies
to test their employees for illegal drugs. Moreover, in professional sports testing for
performance-enhancing drugs is increasingly common. Lance Armstrong was stripped
of his seven Tour de France titles after admitting in 2013 to doping, and Major League
Baseball has struggled to rein in steroid and human growth hormone use by many of its
players, including stars such as Ryan Braun, Miguel Tejada, and Alex Rodriguez, who
was banned from the entire 2014 season for his use of performance-enhancing drugs.
What about drug testing by the state? The Court has upheld random drug testing
for high school athletes and mandatory drug testing for any junior high or high school
students involved in extracurricular activities.^125 In the case of athletes, proponents
of the policy asserted that safety concerns should preclude a 260-pound lineman
or a pitcher with a 90-mile-per-hour fastball from using drugs. However, the same
arguments could not be made for members of the choir, band, debate club, social
dance club, or chess club, so this decision to include all extracurricular activities was a
particularly strong endorsement of schools’ antidrug policies.
The Court has also upheld drug testing of public employees, with one exception. It
struck down a Georgia law that would have required all candidates for state office to pass a
drug test within 30 days of announcing a run for office, because candidates are not public
employees.^126 Rather than appealing to the courts, former senator Ernest Hollings of South
Carolina had a different approach to avoid drug testing. When his opponent challenged
him to take a drug test, the senator shot back, “I’ll take a drug test if you take an IQ test.”The Post–September 11 Politics of Domestic Surveillance The debate over the
trade-off between civil liberties and security intensified in 2005 when a White House–
approved domestic surveillance program was revealed. At the center of this controversy
is the National Security Agency (NSA), which was created during the Korean War in
1952 by President Harry Truman. The agency was initially kept so secret that for many
years the government even denied its existence. Insiders joked that the “NSA” stood
for “No Such Agency.” Today the NSA is responsible for surveillance to protect national
security, whereas the FBI is in charge of spying related to criminal activity and the Central
Intelligence Agency (CIA) oversees foreign intelligence gathering. Since the terrorist
attacks of September 11, 2001, the NSA has been monitoring the phone calls and Internet
usage of many U.S. citizens who have had contact with suspected terrorists overseas.
These calls were intercepted without the approval of the Foreign Intelligence Surveillance
Court (FISC), which was created by Congress in 1978 under the Foreign Intelligence
Surveillance Act (FISA) specifically for approving requests for the interception of calls. The
NSA was also found to be creating a database of every phone call made within the borders
of the United States. Phone companies AT&T, Verizon, and BellSouth reportedly turned
over records of millions of customers’ phone calls to the government.^127 In 2013, classified
information revealed by Edward Snowden showed that the NSA had been monitoring the
phone calls of German chancellor Angela Merkel and other leaders of allied countries, in
addition to collecting e-mail traffic in the United States that contained the e-mail address or
phone number of a foreign target. In April 2017, the NSA announced that it would no longer
collect information on communications that simply mentioned someone rather than
being sent to or from that person (so-called “about searches”). It also would discontinue
“backdoor” searches in which conversations and Internet data from Americans getFull_05_APT_64431_ch04_102-147.indd 135 16/11/18 1:31 PM